BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090013039 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge be upgraded to general.

2.  The applicant states that his discharge is unjust because it did not consider his young age at the time and his 13 months of service in the Republic of Vietnam.  He further states that President Carter had pardoned many Vietnam veterans.  He contends that he should have applied sooner but did not realize the importance of having an honorable or general discharge.  He enlisted at 17 years of age and was sent to the Republic of Vietnam when he was 18 years of age. He was in the top 10 percent of his basic training class and was advanced to private, pay grade E-2.  He quickly moved up to specialist four, pay grade E-4, and was about to be promoted to specialist five, pay grade E-5, when he was caught with a small amount of marijuana.  Three weeks later he returned to the United States, where he was spit on and called a baby killer.  He was never offered any legal counseling or a lawyer of any kind.  He signed the other than honorable discharge because he did not want to go to jail for 3 years.  He would have gladly finished his enlistment but felt the jail time was too severe.  He believed in his country and served proudly in a very controversial war.

3.  The applicant provides no additional documentation in support of his application.



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 24 December 1968, the applicant enlisted in the Regular Army for 3 years at 17 years and 8 months of age.  He completed his initial training and was awarded military occupational specialty (MOS) 76P (Stock Control and Accountability Specialist).

3.  On 24 May 1969, the applicant departed Fort Lee, Virginia, for duty in the Republic of Vietnam.

4.  On 29 June 1969, the applicant was assigned for duty in his MOS with the 32nd Medical Depot.

5.  On 23 August 1969, the applicant was advanced to specialist four, pay 
grade E-4.

6.  On 22 September 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for operating a motor vehicle at 34 miles per hour in a 25-mile per hour zone.  The punishment included a forfeiture of $25.00 pay per month for 1 month.

7.  On 20 February 1970, the applicant accepted NJP for failing to go to his appointed place of duty at the prescribed time and for being derelict in his duties by failing to secure the unit mail room.  The punishment included a forfeiture of $50.00 pay per month for 1 month ($25.00 suspended).

8.  On 3 April 1970, the applicant accepted NJP for being absent without leave (AWOL) for 1 1/2 days.  The punishment included a forfeiture of $70.00 pay per month for 1 month and reduction to pay grade E-3.

9.  On 16 June 1970, the applicant accepted NJP for wrongful possession of 3.1 grams, more or less, of marijuana.  The punishment included a forfeiture of $66.00 pay per month for 2 months, reduction to pay grade E-1, and 45 days of extra duty.

10.  On 29 June 1970, the applicant returned to the United States.

11.  The applicant was AWOL from 25 March to 5 October 1971.  He was apprehended on 5 October 1971 and confined.

12.  On 5 October 1971, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the period from on or about 25 March 1971 to on or about 5 October 1971.

13.  On 26 October 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge (UOTHC), and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

14.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

15.  In his request for discharge, the applicant indicated that he understood that if his discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

16.  On 16 November 1971, the applicant's commander stated in his endorsement to the applicant's request for discharge that the applicant had not received any court-martial convictions or NJP.

17.  On 2 December 1971, the separation authority approved the applicant's request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 25 January 1972, the applicant was discharged accordingly.  He had completed a total of 2 years, 6 months, and 20 days of creditable active military service and had accrued 194 days of time lost due to AWOL.

18.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

19.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

20.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

21.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge is unjust because it did not consider his young age at the time or his service in the Republic of Vietnam.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant had satisfactorily completed training and had advanced through the ranks to specialist four in only 8 months of service.  His satisfactory performance demonstrated his capacity to serve and shows that he was neither too young nor immature.

4.  The applicant's contention that he was not afforded legal counsel is not supported by the evidence of record.  He acknowledged having received legal counseling on 26 October 1971.

5.  The applicant's contention that his service in the Republic of Vietnam was not considered at the time of his discharge was, in part, true.  The commander clearly failed to show the applicant's four NJP's that he received while serving in the combat theater.  Had the commander been aware of these previous punishments, the applicant's request for administrative discharge might have been denied, resulting in trial by court-martial.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  __x_____  __x_____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________x_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090013039



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ABCMR Record of Proceedings (cont)                                         AR20090013039



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